THE BANKRUPTCY

INHOUDSOPGAVE

 

I HAVE BEEN DECLARED PERSONALLY : WHAT NOW?

Bankruptcy causes a wide range of consequences for the bankrupt, the consequences of which will be briefly explained below.

  1. The curator will contact you to make an appointment

It is of course important that you can be reached by email or telephone and that you bring all accounting documents and other important matters with you.

During the appointment, the curator will discuss the financial situation of you or your company with you, including the accounts, outstanding debts, any cars registered in your name / name of the company, your place of residence, possessions, etc.

This first meeting is important. The curator will get a clear picture of the circumstances that led to your bankruptcy and can thus determine the further course of the procedure.

2. You will no longer receive mail at your own address / registered office

From now on, your mail will be sent to the bankruptcy trustee's office. This measure is taken because documents about health insurance, social security, social insurance, etc. are regularly sent to the bankrupt. Those documents are important to the curator. By receiving the mail at his office, he certainly does not miss anything.

However, the curator is legally obliged to transfer private mail (personal letters, etc.) to you.

3. You may no longer have your own property from the day of the bankruptcy decision

This means that you can no longer pay off debts yourself and no longer have access to your goods and funds. After all, the trustee in bankruptcy can use all your assets to pay off the debts by selling them.

Naturally, the law imposes restrictions on this which ensure that you can still live. Are not covered by this; including food, bed and bedding, clothes, washing machine and iron, necessary heating appliances, etc. (full list can be found in Article 1408 of the Judicial Code).

In the old bankruptcy law (all bankruptcies pronounced before 1 May 2018), this provision also applied to wages.

This provision has been removed in the new law (i.e. for bankruptcies pronounced after 1 May 2018). You can make full use of your wages, income and, in consultation with the curator, you can even decide to make a restart.

It is important to know that these are not goods that you have received after bankruptcy and that do not have their cause in bankruptcy. A good example of this is an inheritance that you receive during the bankruptcy procedure, which you will have free access to.

The curator will provide you with the necessary information about this.

4. No more running processes

The law says in art. XX 119 of the Code of Economic Law (hereinafter WER) that all disputes related to the estate (eg concerning unpaid invoices) that were in progress on the date of bankruptcy are suspended until the date of the declaration of the claim. The bankruptcy trustee can then accept the claim, which means that the procedure in court is no longer necessary, or he can choose to continue the discussion anyway.

5. All attachments made before the bankruptcy order are suspended

Art. XX 120 WER indicates that bailiffs will no longer be allowed to make seizures during the bankruptcy procedure, so they may no longer enforce payments. However, if a date of forced sale of a confiscated property had already been set for the judgment, this property may still be sold. The proceeds of that good go entirely to bankruptcy, so that this can serve until the liquidation.

6. Current agreements are canceled

The bankruptcy trustee can cancel all contracts that the bankrupt had entered into if he deems it necessary. So it can be house rental, gas, internet, water etc.

In the event of the bankruptcy of a company that employed personnel, the trustee will also ensure that the employees know where they stand. The employment contracts will be terminated from the date of the bankruptcy decision. They can then claim their arrears from the company closure fund.

 

MY COMPANY HAS BEEN BANKRUPTCY. WHAT NOW?

If your company has been declared bankrupt, you generally do not have to guarantee this with your personal assets, you are merely regarded as the manager or director of the company.

The Enterprise Court will appoint a receiver who is responsible for the liquidation of the bankruptcy. He will contact you and ask you a whole series of questions.

Your cooperation is mandatory and extremely important. If you do not fully cooperate, the trustee in bankruptcy can after all file a criminal complaint against you with the Public Prosecution Service.

  1. You will have to transfer the following information / documents / documents to the curator:

  1. The company file: deed of incorporation, deed (s) of capital increase, proof of payment of the subscribed capital, financial plan, shareholders register.

2. Complete accounting:

  • The last two annual accounts filed

  • The ledger with histories, the last closed financial year and the current financial year

  • interim test and balance balance on date of bankruptcy

  • Sub-ledger regarding customers, with histories closed financial year and current financial year and aging list + copy of outstanding invoices

  • Sub-ledger concerning suppliers with histories closed financial year and current financial year and aging list + copy of outstanding invoices

  • Diaries cash and banks

  • Various diary

  • The inventory of the closed financial year

  • The depreciation table of the last 2 financial years

  • The latest corporate income tax return

  • The current state of VAT & current account (and any special accounts)

  • A list detailing the accounts in your possession.

3. Bank cards, checks, etc. in the name of the company, bank account numbers that were used.

4. The personnel register + list of the personnel still in service: name, place of residence, date of birth, labor or clerical contract, date of employment, dependents, gross monthly salary, social secretariat, date of departure of the last employee.

5. Cars: issue of keys, vehicle documents and certificate of conformity

6. Inventory inventory; inventory stock; realestate;

7. Lying funds and securities (cash position);

8. Identity of the owner (s) of the goods located in the bankruptcy (vehicles or equipment for rent or consignment);

9. Any lease contracts;

10. The fire insurance: policy and maturity date;

11. Other contracts: loans; financing; mortgage loans; secure; leasing contracts; life, company and group insurance;

Business managers or (managing) directors of a company remain responsible for the accounting of the company until the date of the bankruptcy. This therefore also includes the company's tax obligations up to the date of the bankruptcy

You will therefore still be responsible for the tax returns for the past financial year and the current financial year up to the date of bankruptcy. From the date of the bankruptcy, only NIHIL declarations will follow.

In principle, declarations must be submitted via BIZTAX before the end of September.

You will have to submit the proof of these declarations to the curator.

3. VAT return for the current period

The same applies here for the current period; the current month up to the date of the bankruptcy, if the company is a monthly declarant, otherwise the current quarter if the company is a quarter declarant.

4. Custody of company accounts

As a business manager, you are obliged to keep the company's accounts and to keep them available to the curator. This is done at your own expense and responsibility.

You must keep the accounts for a period of 7 years, starting from the first of January following the date of the bankruptcy or until the closure of the bankruptcy, if this would not have been completed within a period of 7 years.

 

2. Declaration of corporation tax for the current financial year and / or previous financial year

SOCIAL STATUS AFTER BANKRUPTCY: BRIDGING RIGHT

Self-employed persons are entitled to social security income if they have to stop their activity due to, for example, bankruptcy.

This right is called the “bridging right”. This right offers a replacement income to self-employed persons who have to stop their activity.

 

Since 1 January 2017, four specific situations have been created that create the bridging right:

  1. bankruptcy of the business (both for sole traders and for companies);

  2. a collective debt settlement (the collective settlement must predate the termination);

  3. fire, destruction by third parties, natural disaster, occupational allergy.

  4. discontinuation for economic reasons. (= new from January '17)

In order to be able to claim the bridging right, one must meet a number of cumulative conditions:

  1. have been self-employed in the main occupation or assisting spouse (maxi-status) in the quarter of abandonment and in the three quarters immediately preceding it;

  2. social contributions are due in those quarters;

  3. Have effectively paid 4 quarters in the 16 quarters prior to the termination or bankruptcy;

  4. no longer have any professional activity;

  5. are under 65 and are not entitled to another replacement income.

The monthly benefit is the same amount as the minimum pension for the self-employed, and can be used up to a maximum of 24 months over the entire career as a self-employed person. This means that if you have used the bridging right for a first bankruptcy for 4 months, you can still claim the bridging right for a maximum of 20 months after a second bankruptcy.

It is impossible to cumulate the bridging right with income from work performance or any other replacement income.

Unemployment benefits always take precedence. Even if the amount of your unemployment benefit is much lower than that of your bridging right, you will still be satisfied with the lower amount of unemployment. You are obliged to prove that you are not entitled to unemployment benefit when you apply for the bridging right.

From 1 May 2018, the Bankruptcy Act allows a larger group of entrepreneurs to go bankrupt and has therefore also broadened the scope of the bridging right:

  • Liberal professions can go bankrupt and obtain bridging rights.

  • Independent helpers and assisting spouses may in certain cases go bankrupt. Assisting spouse (maxi status) can apply for a bridging right.

 

DECLARED FAILURE: THE POSSIBILITIES

If you believe that you have been wrongly declared bankrupt, you have two options: objection or appeal.

1. Resistance

A bailiff means to you a judgment stating that you or your company has been declared bankrupt by the Enterprise Court. However, you were not present at the hearing and knew nothing about it, but you believe that the bankruptcy was wrongly pronounced.

You then have the option to object to the bankruptcy decision. It is important to know that the law has an expiry period of 15 days, counting from the date of service. This means that, after you have received the bailiff's judgment, you still have 15 days to file an objection. After the expiry of those 15 days, the bankruptcy judgment will become final.

If you are declared bankrupt again, an appeal is still possible.

2. Appeal

You were aware of the current procedure and were present at the hearing. You do not agree with the judge's decision to declare you bankrupt. You can then appeal against that decision. The period for lodging an appeal is 15 days from the publication of the judgment in the Belgian Official Gazette.

This is different from resistance. The curator is obliged to publish the verdict in the Belgian Official Gazette within a period of 5 days after the judgment. The term for lodging an appeal starts from that publication. Once those 15 days have passed, the bankruptcy verdict becomes final.

 

If you have been summoned by a creditor and you want to file an appeal or objection, it is advisable to immediately pay the creditor in question in full.

It is important that you immediately consult a lawyer, since the debt in question may already have been incurred with damages and interest. Such procedures can be complicated. Assistance by someone with expert knowledge of this matter is essential.

 

I AM A CREDITOR. WHAT SHOULD I DO?

One of your customers has been declared bankrupt but still has a lot of outstanding debts with you. You are now a creditor and will have to submit your declaration (including supporting documents, eg copy of the invoices) on the website of the Central Register of Solvency, REGSOL for short.

Declarations at the registry of the Enterprise Court or at the bankruptcy trustee are no longer accepted, so it is crucial that you use the platform.

If you act as a private individual (natural person), you can contact the appointed trustee who can arrange your tax return for you. Companies (legal entities) are obliged to prepare their declaration themselves.

The declaration is as follows:

  1. You go to the website www.regsol.be .

  2. Proceeds to the mandatory registration.

  3. Enter the name of the bankruptcy.

  4. Fill in the data in the form. You note that the claim is ordinary or privileged.

  5. If the claim is particularly privileged, state the subject of the special privilege.

  6. You then upload the accompanying supporting documents and any explanatory note.

This registration gives you the right to inspect all the compulsory publications of the trustee in REGSOL, and is of course completely free of charge.

You will see that REGSOL works with a timeline. This gives you the opportunity to monitor the progress of the entire bankruptcy procedure and to view all documents. For example, you can contact the curator if you have any questions or comments.

The official report of debt verification will be most relevant to you, as a creditor. These documents indicate how many creditors are effective and to what extent the trustee has accepted the claims.

When a debt is “held”, this means that no position has yet been taken on this claim. This will then be done in a subsequent official report of verification of claims.

The bankruptcy trustee is also obliged to file a financial report once a year. These reports provide a clear and clear picture of the financial situation of the bankruptcy at the time of publication. It answers the question about the state of affairs at that time.

Registration of your claim in REGSOL therefore allows you to monitor the settlement of the bankruptcy at any time and to request and provide additional information to the trustee if you are aware of circumstances, events, etc. that are unknown to him. . This is the case, for example, if you know that the published inventory is not complete and you have knowledge of other assets that have not been inventoried.

The curator officially communicates via REGSOL. So it's important that you keep an eye on this and make sure that these messages are not mistakenly assigned to the SPAM or UNWANTED MAIL boxes by your program. This was quickly resolved by indicating once that these messages are not junk mail.

 

HOW IS THE MONEY DISTRIBUTED AMONG CREDITORS?

The main task of the bankruptcy trustee is, of course, to actively realize as much as possible from which the creditors can be paid.

Basically, there are six different types of creditors:

  1. Estate creditors

  2. Those who have a business right

  3. Particularly privileged creditors

  4. Socially passive

  5. Generally privileged creditors

  6. Chirographic (or ordinary) creditors

They will be paid in descending order, we speak of a so-called “ranking scheme”.

Estate debts are first-rank debts. They arise after bankruptcy and are inherent in the bankruptcy procedure. This includes legal costs, the trustee's fees and the costs that the trustee must incur to be able to settle the bankruptcy.

The second in rank are the creditors who have a certain right in rem . These are creditors who, under a specific right, can claim a specific good (or the proceeds thereof), with priority over all other creditors. Think of a bank that provides a loan that is covered by a mortgage. The bank will then, with priority, be paid out with the proceeds from the sale of the property. Such collateral must always be registered with a mortgage office in order to be enforceable against third parties, in other words, so that you can rely on it for the trustee as a creditor. It is important that you add a copy of that registration to your tax return.

Third in rank are particularly privileged creditors . They too are entitled to a specific good or the proceeds thereof. In insolvency law this good is called “the saddle”. The difference with the claims encumbered with collateral security is that the right of priority here arises from the law, and therefore does not have to be registered with a mortgage office. An important special privilege is that of the “unpaid seller”.

Suppose you sell an excavator to a client company. The company goes bankrupt even before the actual payment for that excavator has been made. You can then invoke your privilege as an unpaid seller with the trustee. This privilege gives you a retention of title. You will then, with priority over all other creditors, be paid out of the proceeds from the sale of that excavator or you can reclaim the excavator yourself. An important condition is that the property (here the excavator) is still in the assets of the bankrupt at the time of the declaration of bankruptcy. After all, if the curator cannot find it properly, the special privilege has become “without a saddle” or without an object.

In the social liability are the (ex-) employees of the bankrupt who believe that they still have certain rights, such as arrears, holiday pay, etc.

The generally privileged creditors , 5th in rank, have the special privileged, a claim on the entire general assets of the bankrupt. This is also a privilege arising from a statutory provision. However, their privilege does not rest on a specific asset, and so they will be entitled to payment with the proceeds from the sale of the bankrupt's global assets.

Finally, ordinary creditors are discussed. They do not enjoy any guarantee / privilege for the payment of their claims. They will only be repaid after all other aforementioned creditors have been paid, provided that there is still something left of course. For example, unpaid invoices are common ordinary debts.

 

I AM DEBTOR. WHAT NOW?

As a debtor (ie you still owe money to the bankrupt) you have an obligation to provide information.

This obligation means that you must provide the trustee with all useful information and cooperation that is required. You will have to pay off your debts. After all, this is money with which the creditors can be paid. If you fail to do this, the curator may take coercive measures. These coercive measures can serve to undo actions that you have taken before the bankruptcy procedure with the aim of making certain goods no longer susceptible to sale during bankruptcy.

The most common debtor in insolvency proceedings against a company is the manager / director himself. This mainly concerns open accounts current debit and unfunded capital. The trustee in bankruptcy can determine these outstanding balances on the basis of the most recently filed annual accounts and / or contact with the accountant.

The curator will contact the manager about this and ask him for the necessary information. A repayment plan will be drawn up that the manager will have to adhere to.

If he does not do this, the curator will send him a reminder to pay. If that reminder also remains without consequence, the manager will be summoned to the Enterprise Court. Legal proceedings will be initiated to obtain payment.

In addition, the bankruptcy trustee will investigate the so-called “directors' liability” when a company is declared bankrupt. The bankruptcy trustee will check whether the managers / directors have abused the company declared bankrupt in order to gain personal benefit from it. They can then be summoned separately for this.

 

DISCHARGE

If you have been declared bankrupt personally (ie as a natural person), the law provides for the possibility of “remission”. This means that you will no longer have to pay the debts that remain after the liquidation of the bankruptcy.

The law provides that you must request this remission yourself via a petition.

When you file for bankruptcy yourself, you must enclose the application for remission with the declaration of your bankruptcy at the start of the procedure. Another possibility is that you submit the petition to the registry at the latest three months after the bankruptcy decision has been announced.

The registry transfers the petition to the trustee, who will have to file a report within one month on all circumstances that may give rise to the determination or not of manifest gross negligence committed by you, which contributed to the bankruptcy.

In principle, the waiver is the rule, unless there is a serious error that led to the bankruptcy decision and occurred before the bankruptcy decision.

Your cooperation during the bankruptcy, size of assets and liabilities are irrelevant for the decision on remission.

It is recommended that you be assisted by a lawyer in applying for the remission.

 

BANKRUPTCY OF DIRECTOR OR BUSINESS MANAGER

The new law of 1 May 2018 provides that directors or business managers can also be declared personally bankrupt, regardless of the bankruptcy of the company in which they acted.

Book I WER provides in art.I.1 § 1 its definition of the term company, also Book XX concerning bankruptcy refers to that definition:

  1. any natural person who independently carries out a professional activity;

This is everyone, unless he is an employee, including a business manager or director of a company. The law states that a director or manager carries out an independent professional activity by acting as a director or manager of the company declared bankrupt.

The law does not impose any other conditions. It therefore follows that it concerns employees, the labor court will have jurisdiction and a debt mediation procedure can be initiated.


When it comes to directors or business managers, the company court is indeed competent and bankruptcy can be pronounced.

This is a good thing as debt settlement procedures can last up to 7 years, while bankruptcy can usually be handled much faster.

 

COLLECTION BY BANKRUPTCY

The bankruptcy of one of his customers is of course a situation that every entrepreneur fears. After all, it becomes a lot more difficult to see outstanding invoices paid.

Fortunately, bankruptcy can not only be filed by the debtor himself or the prosecution service. Creditors can also start this procedure with the Enterprise Court of the region where the company in question has its registered office.

In order to be able to file for bankruptcy as a creditor, the debtor must be summoned several times and given notice of default to pay the invoice.

The application for bankruptcy of the debtor by a creditor can be a means of pressure to get outstanding invoices paid.

Master Schoenaerts will guide and assist you as a creditor in such a situation throughout the entire procedure against your debtor.

 

Amerikalei 31

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